Airport Scanners, Pat-Downs: Pilots File Suit

By Tanya Roth, Esq. on November 18, 2010 1:07 PM

It was only a matter of time. A federal suit has been filed over the “enhanced” pat-downs and full body portraits courtesy of airport scanners that have been the topic of so much discussion, dislike and distrust. As we noted in a post earlier in the week, the public is pushing back on the new security tools, even as it recognizes the need for them. On November 16, two airline pilots filed suit, saying the procedures are a violation of the Fourth Amendment prohibition against unreasonable search and seizure.

The suit goes right to the balancing act between the right to privacy, the protections of the Fourth Amendment and the fact that no one wants to get on an airplane with someone who may have a concealed weapon. According to The Wall Street Journal, the suit claims there is no link between the reasonable suspicion of criminal activity usually required for a search and the invasive screenings and pat-downs at the airport.

There are several strong arguments in favor of the enhanced searches, writes The Christian Science Monitor. First, are the searches so unreasonable as to violate the Fourth Amendment? Southern Illinois University at Carbondale law professor William Schroeder says no, since terrorists such as the "underwear bomber" have hidden weapons on their bodies that the less invasive searches have not found. Then next question might be: What about the weapons that cannot be found even with the current invasive techniques, such as anything hidden in a body cavity? According to The Wall Street Journal, the scans can't pick up things inside the body. Does that failure make the scan unreasonable, or just not very useful?

Consent is another argument. Professor Schroeder believes that the purchase of the ticket to fly should equate to consent to the search. "You've consented. You don't have to fly - that's your choice," he says. However, the Constitution has also been interpreted to guarantee the right to travel. If it is so time consuming as to be virtually impossible to move freely from state to state (and certainly out of the county) without air travel, does that violate this right the courts have said flows from the Constitution?

These questions will most likely be argued in court during this case and in others that will no doubt be filed. For those members of the public that prefer a form of civil disobedience to court action, The Journal reports that a national "Opt Out Day" is planned for the day before Thanksgiving.

So are we safer with the new airport scanners and other security techniques? Some argue no, the reliance on technology is not a better, safer, or less invasive way to ferret out criminals and terrorists. Yet, the threat is not going away. "There's a new paradigm in aviation security given the threats we are facing," TSA head John Pistole told The Journal.

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